Judge says either DA Fani Willis or prosecutor Nathan Wade must step aside in Georgia election case

(ATLANTA) — The judge overseeing the Georgia election interference case against former President Donald Trump and his co-defendants has declined to outright disqualify Fulton County District Attorney Fani Willis, but ruled that either she or prosecutor Nathan Wade must step aside from the case.

In a 23-page ruling, Judge Scott McAfee wrote that while “dismissal of the indictment is not the appropriate remedy,” he concluded that “the established record now highlights a significant appearance of impropriety that infects the current structure of the prosecution team.”

McAfee ordered that the conflict described by the defendants presents “an appearance that must be removed through the State’s selection of one of two options.”

“The District Attorney may choose to step aside, along with the whole of her office, and refer the prosecution to the Prosecuting Attorneys’ Council for reassignment,” McAfee wrote.

“Alternatively, SADA Wade can withdraw, allowing the District Attorney, the Defendants, and the public to move forward without his presence or remuneration distracting from and potentially compromising the merits of this case.”

In justifying his decision, McAfee found that defendants “failed to meet their burden of proving that the District Attorney acquired an actual conflict of interest” — the standard by which McAfee apparently measured his ruling.

Trump’s lead attorney in the Georgia case, Steve Sadow, said in a statement, “We will use all legal options available as we continue to fight to end this case.”

“While respecting the Court’s decision, we believe that the Court did not afford appropriate significance to the prosecutorial misconduct of Willis and Wade, including the financial benefits, testifying untruthfully about when their personal relationship began, as well as Willis’ extrajudicial MLK ‘church speech,’ where she played the race card and falsely accused the defendants and their counsel of racism,” Sadow said.

A key element of the defense’s case was showing that Willis deliberately prolonged the case to further enrich Wade, who was being paid hourly. McAfee fully disagreed with their argument.

“But in fact, there is no indication the District Attorney is interested in delaying anything. Indeed, the record is quite to the contrary,” he wrote.

“The District Attorney has not in any way acted in conformance with the theory that she arranged a financial scheme to enrich herself (or endear herself to Wade) by extending the duration of this prosecution or engaging in excessive litigation,” McAfee wrote.

Despite this, McAfee judged Wade’s testimony to be “patently unpersuasive,” which McAfee said “indicates a willingness on his part to wrongly conceal his relationship with the District Attorney.”

“An outsider could reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences,” McAfee wrote. “As long as Wade remains on the case, this unnecessary perception will persist.”

Wade’s testimony, McAfee wrote, left the investigation “encumbered by an appearance of impropriety.”

The defense’s case for disqualification hinged in large part on the timing of Wade and Willis’ relationship. If it began before Wade’s appointment as special counsel, the defense argued, then it would demonstrate a clear financial conflict.

Of this debate — which became a centerpiece of Willis’ emotional testimony — McAfee wrote: “Neither side was able to conclusively establish by a preponderance of the evidence when the relationship evolved into a romantic one.”

Nevertheless, wrote the judge, “an odor of mendacity remains.”

The defense, including Sadow, also argued that Willis committed forensic misconduct by “stoking racial and religious prejudice” against the defendants with a speech she made at a church following the allegations, in which she said the allegations were motivated by race.

McAfee wrote that he “cannot find that this speech crossed the line to the point where the Defendants have been denied the opportunity for a fundamentally fair trial, or that it requires the District Attorney’s disqualification.”

But he still took Willis to task for it, writing that its effect “was to cast racial aspersions at an indicted Defendant’s decision to file this pretrial motion.”

Even though it may not have “crossed the line,” as McAfee wrote, “it was still legally improper.”

“Providing this type of public comment creates dangerous waters for the District Attorney to wade further into,” McAfee wrote. “The time may well have arrived for an order preventing the State from mentioning the case in any public forum to prevent prejudicial pretrial publicity, but that is not the motion presently before the Court.”

Ultimately, wrote McAfee, “it is the undersigned’s opinion that Georgia law does not permit the finding of an actual conflict for simply making bad choices — even repeatedly — and it is the trial court’s duty to confine itself to the relevant issues and applicable law properly brought before it.”

In a statement responding to the ruling, the attorney for Trump co-defendant Michael Roman — who uncovered the relationship between Willis and Wade and first filed the motion — said they “do not agree” with the court’s decision, but called it a “vindication” that what they presented was “true, accurate, and relevant.”

“The judge clearly agreed with the defense that the actions of Willis are a result of her poor judgment and that there is a risk to the future of this case if she doesn’t quickly work to cure her conflict,” said attorney Ashleigh Merchant. “While we do not agree that the court’s suggested cure is adequate in response to the egregious conduct by the district attorney, we look forward to the district attorney’s response to the demands by the court.”

The highly anticipated ruling follows a contentious, monthslong disqualification effort spearheaded by Trump and his co-defendants over allegations of misconduct against Willis, which she has fiercely denied.

Roman and several other Trump co-defendants first sought Willis’ disqualification from the election case over allegations that she benefited financially from her romantic relationship with prosecutor Nathan Wade, who she hired for the case, through vacations they took that were often booked on his credit card.

Willis and Wade admitted to the relationship, but said it “does not amount to a disqualifying conflict of interest” and that the relationship “has never involved direct or indirect financial benefit to District Attorney Willis.” The DA testified that she often paid Wade back in cash for trips they took.

McAfee held several days of hearings to probe the allegations, during which both Willis and Wade took the stand to deliver emotional testimony.

“You’re confused. You think I’m on trial,” Willis said to Ashleigh Merchant, the defense attorney questioning her. “These people are on trial for trying to steal an election in 2020.”

“I’m not on trial, no matter how hard you try to put me on trial,” Willis said.

Outside of allegations of financial misconduct, a debate later emerged over the exact timeline of their romantic relationship. Trump’s attorney said both Willis and Wade were “not truthful” when they testified that the relationship began in 2022, after Wade was hired in 2021, urging the judge to disqualify them based on that testimony alone.

“Now, do you have to find that Wade and Willis lied? No,” said Trump’s attorney, Steve Sadow, during his closing argument in the evidentiary hearing. “What you need to be able to find is that that is a concern, a legitimate concern, based on the evidence in this case about their truthfulness.”

“A legitimate concern about the truthfulness, which equates to an appearance of impropriety,” Sadow said.

Multiple defendants alleged the relationship began before Wade was hired, including a former employee in the DA’s office, Robin Yeartie.

Willis’ office dismissed the defendants’ overall disqualification efforts as “absurd” and said there was “absolutely no evidence that [Willis] received any financial gain or benefit.” They insisted that in order to disqualify her, the law requires the judge to find evidence of a conflict of interest or forensic misconduct.

“No prosecutor in this state has ever been disqualified on the appearance of a conflict,” a filing from her office after the hearings stated.

The defendants had argued differently, saying Willis could be dismissed based solely on the appearance of a conflict of interest.

“While the State claims that no prosecutor has ever been disqualified in Georgia for forensic misconduct, no prosecutor in Georgia, elected or otherwise, has engaged in misconduct like Willis and Wade have here,” Sadow said in a filing.

“I want to make clear to the court that the law in Georgia suggests and is very clear that we can demonstrate an appearance of a conflict of interest and that is sufficient,” said defense attorney John Merchant, who represents Roman.

Trump and 18 others pleaded not guilty last August to all charges in a sweeping racketeering indictment for alleged efforts to overturn the results of the 2020 presidential election in the state of Georgia.

Defendants Kenneth Chesebro, Sidney Powell, Jenna Ellis and Scott Hall subsequently took plea deals in exchange for agreeing to testify against other defendants.

The former president has dismissed the district attorney’s investigation as being politically motivated.